I just saw this piece
in the Verge by Gigi Sohn, who served
as counselor to former FCC Chairman Tom Wheeler. Ms. Sohn is urging people to “make
their voices heard” to oppose FCC Chairman Ajit Pai’s confirmation by the
Senate to a new term.
Even aside from the overheated rhetoric, the substance of
Ms. Sohn’s arguments is wrong and misleading. A bit more on that score in a
moment.
But first I’ll say this: I’ve known Gigi for many years,
and, as she knows, I’ve considered her a friend even though we generally disagree
on matters of communications law and policy. I’ve always believed, and still
do, that differences in philosophical or policy perspectives shouldn’t stand in
the way of reasoned discussion and debate – or of friendship.
That said, I’m disappointed that Ms. Sohn is opposing Mr.
Pai’s confirmation. It is true, as Gigi says at the outset of her piece,
that Mr. Pai is “smart,” “personable,” and “nice.” Those obviously are important
qualities for a leader of a multimember agency which ought to aspire to operate
on a collegial basis. No one doubts that Mr. Pai possesses those qualities – in
spades. But, as importantly, there is widespread agreement that Mr. Pai, by
virtue of his prior service on the Commission and on its staff, possesses vast
knowledge and expertise regarding the substance of the issues that confront the
FCC.
So, the real basis of Ms. Sohn’s objection to Mr. Pai’s
confirmation to a new term is that his policy predilections differ in
fundamental respects from hers and those of Tom Wheeler, the FCC chairman she
served. Well, that’s to be expected in a new administration – and it is in no
way a sufficient reason to oppose Mr. Pai’s confirmation. And it never has been.
Indeed, I didn’t agree with many of Mr. Wheeler’s actions leading the FCC and
knew before he took office that I wouldn’t – but I suspect he will recall that on
several occasions, prior to his Senate confirmation, I defended him publicly
when his fitness to serve was attacked.
Now, briefly, back to the substance. Mr. Pai has made clear
that closing existing digital divides is a priority, and he understands that
the existing universal service programs are important tools in achieving this
objective. Ms. Sohn’s problem is that, at the same time, Mr. Pai wants to
reform the programs so that, to the extent possible, the acknowledged waste,
fraud, and abuse that exist are minimized. That must be done if these subsidy
programs – currently funded by a nearly 20% tax assessed on all consumers’
telephone bills! – are to maintain
public support. Ms. Sohn should share that objective.
As for “media consolidation,” throughout her career, Ms.
Sohn and her like-minded pro-regulatory colleagues have cried wolf about
“massive media consolidation” even as media outlets have continued to
proliferate. One notable example: They claimed the ill-fated AOL-Time Warner merger
would forever dominate the media/Internet landscape. How off-base was that
wolf-cry?
Let’s face it. We now live in an era of media abundance –
with radio, TV, cable, newspapers, magazines, and, oh yes, the Internet. In other
words, digital media nirvana for those who want access to hundreds, nay,
thousands, of different views and perspectives. I’ve been involved in communications
law and policy for four decades, and I know that when Ms. Sohn raises the red
flag of media consolidation, it’s simply a ruse to justify advocating policies
that would give government more control over the media.
I don’t have any doubt that Mr. Pai will faithfully enforce
any media ownership limits that Congress has put in place or will enact. But
I’m glad that, unlike Mr. Pai’s predecessor for whom Ms. Sohn worked, Mr. Pai is
unlikely to use the boogeyman of supposed “media consolidation” as an excuse to
adopt new regulatory mandates that, in effect, give government more control over
the programming content and editorial decisions of media outlets. That is the
wrong way to go in an age of media abundance.
Finally, the Internet. Truth be told, the real gravamen of
Ms. Sohn’s objection to Mr. Pai’s confirmation is opposition to his proposal to
consider repealing the current public utility-style regulatory regime put in
place by Mr. Wheeler, with Ms. Sohn’s assistance. This gravamen is gravely
wrong.
As Mr. Pai explained in his lengthy dissent to the Wheeler
Commission’s decision to impose public utility regulation on Internet service
providers, there are serious questions regarding the Commission’s legal
authority in this regard. It is entirely proper for the Commission to reexamine
those legal issues, as Mr. Pai has proposed to do.
Moreover, aside from questions relating to the Commission’s
authority, there are good reasons to reconsider whether the imposition of public
utility-style regulation on Internet service providers is unsound as a matter
of policy. Up until Mr. Wheeler led the Commission to embark on a radically
different course, there was a bipartisan consensus that Internet providers
should not be regulated under the same “common carrier” regulations as old Ma
Bell, which, after all, operated in a monopolistic environment.
Back in 1999,
at the dawn of the modern Internet Age, then-FCC Chairman William Kennard – a
Democrat appointed by President Clinton – declared, in turning away pleas from
pro-regulatory interests, that it would be wrong to “just pick up this whole morass of [Title II telephone] regulation and
dump it wholesale on the [broadband] cable pipe. That is not good for
America." Of course, almost twenty years later, in today’s far more dynamic,
competitive digital broadband Internet market environment, imposing “telephone
world” regulation, as Mr. Kennard then put it, on Internet service providers is
certainly “not good for America.” Already there is persuasive evidence, for example,
that the Title II public utility-like regulatory regime imposed by Mr. Pai’s
predecessor has depressed investment in broadband infrastructure. That is not
good for America.
In any
event, surely the fact that Mr. Pai has initiated a rulemaking proceeding to
reexamine public utility regulation of Internet service providers is not a
reason to mount a political-style campaign against his Senate confirmation.
Gigi Sohn is entitled, as she says, to “make her voice
heard.” That’s true. But it is true that Ajit Pai deserves prompt confirmation
to another term. And not only because, as Ms. Sohn acknowledges, he is “nice,”
“personable,” and “smart.” The agency needs to turn away from the doggedly pro-regulatory
disposition of Mr. Pai’s predecessor toward a free market and rule of law-oriented
disposition suited to today’s dynamic digital communications marketplace. Mr.
Pai surely is the right person to lead the FCC at this time.
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